Mesa police officer wants to take stand in Brailsford murder trial to change his testimony

Former Mesa police Officer Philip "Mitch" Brailsford sits in Maricopa County Superior Court in Phoenix on May 16, 2016, during a preliminary hearing. Brailsford is accused of second-degree murder in the fatal shooting of Daniel Shaver in a Mesa hotel.(Photo: Tom Tingle/The Republic)

A Mesa police officer who testified this week in a murder trial of a former colleague accused of unjustifiably shooting an unarmed man wants to take the stand again to change his testimony after reading a news article.

Officer Brian Elmore, a witness for the prosecution, testified on Tuesday that he didn't see an imminent threat shortly before former Mesa police Officer Philip "Mitch" Brailsford shot Daniel Shaver, 26, five times in January 2016.

During redirect, when a lawyer questions his or her witness for the second time, Deputy County Attorney Susie Charbel noted that Elmore didn't fire his AR-15 and asked Elmore if he saw an "imminent threat."

"At that moment, no," Elmore responded.

But earlier in his testimony, when Brailsford's defense lawyer questioned him, Elmore said it was "possible" he may have shot Shaver, who was on his knees sobbing, begging not to be shot, if he saw the same threat Brailsford saw.

The prosecutor's office has charged Brailsford with second-degree murder and the former officer could be facing 10 to 25 years in prison if the jury convicts him. Brailsford has said he shot Shaver because he had raised his right hand, appearing to him that Shaver was reaching for a weapon.

On Wednesday, Elmore's lawyer, Robert Jarvis, told the judge that his client misunderstood Charbel's question and thought Charbel had asked if Elmore needed to shoot, not whether he saw a threat.

Maricopa County Superior Judge George Foster, who is presiding over the case, said he and the lawyers need to review the transcript to see what the question was before Foster decides if Elmore can take the stand again.

Mark Geragos, the lawyer for Laney Sweet, Shaver's widow, said he wanted to wait for the judge's ruling before providing a comment.

"It's highly unusual, but we will wait and see how it unfolds," he said.

The case is uncommon in itself because it is rare for prosecutors to file charges against police officers in on-duty shootings. Since 2005, only one other officer had been charged with murder or manslaughter for an on-duty shooting in Arizona. That was former Phoenix police Officer Richard Chrisman, who was convicted of manslaughter after shooting a 29-year-old man in 2010.

The unusual request from Elmore in this high-profile case raises questions among attorneyswhether an outside lawyer should be allowed to influence a witness' testimony. In this case, the experts question why a witness, who presumably had been prepared before the trial started, needed to consult an outside lawyer.

Elmore's answer wasn't an issue with the prosecutor or the defense attorney until the officer's attorney contacted them.

Victoria Washington, a Phoenix defense attorney, questioned that if the issue was a simple mistake, why not consult with either the prosecutor or the defense attorney.

“I'm troubled he’s basing his recantation not even on his recollections, but on a summary of a newspaper article,” she said.

Washington said that it's not unusual for a witness to come back the same day and tell either the prosecutor or the defense attorney that they may have answered a question incorrectly and want to clarify it to the jury. In her experience, those witnesses have consulted with the trial attorneys and not an outside lawyer.

"If he just miscommunicated, why do you need a lawyer?" Washington said.

David Derickson, a Phoenix criminal defense attorney, said that because Brailsford's trial is a high-profile case, Elmore may want to make sure there aren't any legal repercussions. He said if Elmore realized he answered incorrectly and stayed quiet, he could be facing a perjury or obstruction-of-justice charge. Still, he said, it's unusual.

"First, it's unusual for a police officer to be willing to say he made a misstatement. I certainly don’t get calls from police officers saying they made a mistake," Derickson said. "But if a police officer is concerned enough about his future and his testimony is critical to a case, going to a lawyer is a smart thing, rather than a dumb thing."

Nate Gafvert, president of Mesa Police Association, talks to media after Philip "Mitch" Brailsford was found not guilty of second-degree murder charges in the 2016 shooting of an unarmed Texas man. Nick Oza/The Republic

A Maricopa County jury on Thursday Dec. 7, 2017, found former Mesa police officer Philip "Mitch" Brailsford not guilty of second-degree murder charges in the 2016 shooting of an unarmed Texas man who was on his knees begging for his life. Nick Oza/The Republic

Nate Gafvert, president of Mesa Police Association, talks to media after Philip "Mitch" Brailsford was found not guilty of second-degree murder charges in the 2016 shooting of an unarmed Texas man. Nick Oza/The Republic

Former Mesa police Officer Philip "Mitch" Brailsford (left) and his attorney, Mike Piccarreta, stand for the jury at the start of Brailsford's second-degree murder trial in Maricopa County Superior Court in Phoenix on Oct. 25, 2017. David Wallace/The Republic

Former Mesa police Officer Philip "Mitch" Brailsford sits in Maricopa County Superior Court in Phoenix on May 16, 2016, during a preliminary hearing. Brailsford is accused of second-degree murder in the fatal shooting of Daniel Shaver in a Mesa hotel. Tom Tingle/The Republic

Mesa police Detective Paul Sipe describes how Daniel Shaver placed his hands when instructed by police during an altercation at a hotel in Mesa. Former Mesa police Officer Philip Brailsford was in Maricopa County Superior Court Judge Sam Myers' courtroom in Phoenix on May 16, 2016, during a preliminary hearing. Brailsford is charged in Shaver's death. Tom Tingle/The Republic

Mesa police Detective Paul Sipe shows how Daniel Shaver placed his hands when instructed by police during a 2016 altercation at a hotel in Mesa. Former Mesa police Officer Philip Brailsford was in Maricopa County Superior Court Judge Sam Myers' courtroom in Phoenix on May 16, 2016, during a preliminary hearing. Brailsford is charged in Shaver's death. Tom Tingle/The Republic

Mesa police Detective Paul Sipe describes the night Daniel Shaver was killed during a January 2016 altercation at a hotel in Mesa. Sipe was testifying in a preliminary hearing for Mesa police Officer Philip "Mitch" Brailsford on May 16, 2016. Brailsford is charged in Shaver's death. Tom Tingle/The Republic

Maricopa County Superior Court Judge Sam Myers listens to prosecutor Susie Charbel during a preliminary hearing in the case of former Mesa police Officer Philip Brailsford in Phoenix on May 16, 2016. Brailsford is charged in the death of Daniel Shaver of Texas. Tom Tingle/The Republic

Defense attorney Craig Mehrens asks Mesa police Detective Paul Sipe a question about former Officer Philip "Mitch" Brailsford during a preliminary hearing in Maricopa County Superior Court on May 16, 2016. Brailsford is charged in the death of Daniel Shaver. Tom Tingle/The Republic

Attorney Craig Mehrens defends former Mesa police Officer Philip "Mitch" Brailsford during a preliminary hearing in Maricopa County Superior Court on May 16, 2016. Brailsford is charged in the death of Daniel Shaver. Tom Tingle/The Republic

Projectile fragments and items Daniel Shaver was carrying in his pockets remain in the hallway of the Mesa hotel where Shaver was fatally shot by Officer Philip "Mitch" Brailsford on Jan. 18, 2016. Mesa Police Department

Nik Resheta, a Mesa Police Department spokesman, said no one at the force pressured Elmore to request to take the stand again. He said the department is taking a wait-and-see approach.

"Until he and his attorney speak to the court, we have no idea what he wants to correct or why," Resheta said in an email. "Waiting to see what is going to happen once he and his attorney read the transcript and decide how they will proceed (make a statement, correct a statement or not). This is all him and his attorney, nothing with us."

Jarvis said in a phone interview with The Arizona Republic that he is reviewing the transcript to find what was the question Charbel asked and how Elmore answered. Elmore just wants to make sure the jury gets the accurate information, Jarvis said.

"Elmore's intent is to do what he can to make sure that the correct information gets to the jury," he said. "That's his main concern."

The trial stems from a Jan. 18, 2016, report at a Mesa La Quinta Inn, where Shaver was staying.

Police had responded to the hotel for a call about a person pointing a gun outside of a fifth-floor window. A couple inside a hotel hot tub told staff that they saw a silhouette with a gun pointed toward a nearby highway.

Police later found that Shaver, 26, who had a blood alcohol level of 0.29, nearly four times the legal limit of 0.08, was unarmed when he was shot but had a pellet gun inside his hotel room, which he kept with him as part of his job as a pest-control worker.

Shaver, who had two daughters with his high-school sweetheart, was in Mesa from Granbury, Texas, working for his father-in-law's pest-control company.

Earlier in the trial, Monique Portillo and Luis Nuñez, who had met Shaver at the hotel had testified.

Portillo and Nuñez, both of New Mexico, were in Mesa for a work-related trip and had been invited by Shaver to his room to have an alcoholic drink, they both testified.

Portillo testified Shaver and Nuñez both were playing with the pellet gun and inadvertently pointed it out the window. Nuñez has said it was just Shaver who pointed it out. When police were called, Nuñez had left the hotel arguing with his fiancee on his cellphone, he had testified.

Since the trial began late last month, Charbel has shown police video to the jury at least three times from two different angles from police on-body camera footage of the shooting.

In the video, Shaver appears confused by Mesa police Sgt. Charles Langley's commands on what to do with his hands. At one point, Shaver puts his hands down and behind his back and Langley, who was in charge and the only one yelling out commands, quickly yells at him to put them back in the air or else he would be shot, the video shows.

Brailsford fired his AR-15 rifle at Shaver when the Texas man tried to quickly raise his right hand after he started to crawl on his hands and knees, the video shows.

The judge is expected to decide sometime next week if Elmore can take the stand.